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Sick Leave

  • Sick Leave is covered by Section 62 to Section 72 of the Holidays Act 2003
  • There is no sick leave entitlement within the first 6 months of employment. Section 63(1)(a)
  • After 6 months service an employee is entitled to 5 days sick leave, then another 5 days every 12 months thereafter. Section 65(2)
  • Sick leave can be paid in advance and deducted from future entitlements at the employer's discretion. Section 63(3)
  • An employee is required to notify their employer as soon as possible if sick. Section 64
  • Sick leave can be used for the sickness or injury of an employee, their spouse, or a dependant. Section 65(1)
  • Unused sick leave accumulates to a maximum of 20 days. Section 66
  • Unused sick leave does not have to be paid out on termination. Section 67
  • A medical certificate is required if the sick leave is for 3 or more calendar days. Section 68(1)
  • The employer can require a medical certificate for shorter periods if they have reasonable grounds to suspect the sick leave is not genuine, and the employer pays. Section 68(1A)
  • For each day of sick leave taken, an employer is required to pay the employee's relevant daily pay - that is, what the employee would probably have earned had they been at work. Section 71
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Can an employee use sick leave for first weeks ACC if their injury is not work related?

Yes, most definately. Injury is specifically included as a purpose of sick leave by Section 62

Section 62
Purpose of this subpart

The purpose of this subpart is to provide all employees with a minimum entitlement to paid leave in the event of their sickness or injury, or of the sickness, injury, or death of certain other persons.

Of more interest however is Section 71(4). What this subsection says is that if an employee is off on ACC, and thus receiving 80% of their usual wages from either the employer or the ACC, the employer can top up the remaining 20% by using 1 days sick leave for every week topped up.

Section 71
Payment for sick leave and bereavement leave

(1) An employer must pay an employee an amount that is equivalent to the employee's relevant daily pay for each day of sick leave or bereavement leave taken by the employee that would otherwise be a working day for the employee.

(2) Despite subsection (1), an employer is not required to pay an employee for any time for which the employee is paid weekly compensation under the Injury Prevention, Rehabilitation, and Compensation Act 2001 or former Act.

(3) An employer must not require an employee to take as sick leave any time for which the employee is being paid

(a) first week compensation by the employer under section 97 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 or former Act; or

(b) weekly compensation for a work-related injury within the meaning of that Act or former Act.

(4) However, if an employer pays the difference between the employee's first week compensation or weekly compensation and ordinary weekly pay, the employer may agree with the employee that he or she may deduct from the employee's current sick leave entitlement 1 day for every 5 whole days that the employer makes that payment.

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In my employment contracts, I currently specify that a medical certificate is needed for sick leave to be taken. I understand that Section 68, Subsection 1 specifies that a medical certificate is required after 3 consecutive days of illness, but, Subsection 2 of Section 68 seems to suggest that if I specify something else in an employment contract, it overrides Section 1. Is this correct?

That is not our understanding of Section 68 (proof of sickness or injury).

Our understanding of subsection 2 is that if you allow more than 5 days a year sick leave, your employment agreement can require a medical certificate for all absences that are in addition to the 5 days a year legal minimum.

Let's have a look at the legislation. We have highlighted the two relevant sections, and added the underlines and bold - they are not in the legislation itself.

Section 68
Proof of sickness or injury

(1) An employer may require an employee to produce proof of sickness or injury for sick leave taken under section 65 (five days a year sick leave) if the sickness or injury that gave rise to the leave is for a period of 3 or more consecutive calendar days, whether or not the days would otherwise be working days for the employee.

(2) Subsection (1) does not prevent an employer and employee from agreeing that the employee will produce proof of sickness or injury for sick leave provided to the employee in addition to the entitlement set out in section 65.

(3) For the purposes of this section, proof of sickness or injury may include a certificate from a medical practitioner (within the meaning of the Medical Practitioners Act 1995) that

(a) the employee is not fit to attend work because of sickness or injury; or

(b) the employee cannot attend work

(i) because the employee's spouse is sick or injured:

(ii) because a person who depends on the employee for care is sick or injured.

(4) To avoid doubt, this section does not prevent an employer who is otherwise legally authorised to so require, from requiring an employee to establish that there are no relevant health and safety reasons or hygiene reasons that would prevent the employee from working.

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